Who is the Judge of the Common Good? Possibilities for Judicial Review of Public Interest Establishment in Expropriation Cases : The Example of Serbia

Jerinić, Jelena (2021) Who is the Judge of the Common Good? Possibilities for Judicial Review of Public Interest Establishment in Expropriation Cases : The Example of Serbia. In: Proceedings / International Scientific Conference Property law - challenges of the 21st century, held on 9 October, 2020 in Belgrade, Serbia ; editors Jelena Simić, Aleksa Radonjić. Union University School of Law, Belgrade, pp. 243-260. ISBN 978-86-7952-060-9

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Abstract

Expropriation, as a permissible limitation of personal property rights for a public purpose exists, in all probability, in most legal systems in the world. It is recognized as such in the case-law of the European Court of Human Rights. The procedure in which public purpose is established differs across legislatures. Serbian expropriation law envisages that public interest for expropriation can be established by law, as an act of Parliament, or in a number of areas, by an act of the Government. Legislative establishment is, apparently, under no limitation, other than the general constitutional provision allowing the restriction of property rights in the public interest. The article explores possibilities to utilize legal, primarily judicial remedies, in situations where the very establishment of public interest is called into question. The author claims that the possibilities are rather limited – particularly in relation to standing of owners whose property rights are to be affected by the expropriation, as well as the standing of representatives of wider interests of the public. She also explores issues relating to the effectiveness of these legal remedies.

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